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2006 - 2005

  • CA4 Holds Timely Motion to Reopen Does Not Automatically Toll Voluntary Departure (10/6/2006)
    The court held that a timely motion to reopen does not automatically toll the voluntary departure period pending adjudication of the motion. (Dekoladenu v. Gonzales, 08/18/06)
    AILA Doc. No. 06100668.
  • CA4 Remands on Issue of Whether Well-Founded Fear Presumption Was Rebutted (9/8/2006)
    The court held that Petitioner was not eligible for humanitarian asylum, finding that the past persecution he suffered was not “the most atrocious abuse.” The court remanded on the issue of well-founded fear of future persecution. (Naizgi v. Gonzales, 7/31/06)
    AILA Doc. No. 06090874.
  • CA4 Discusses Delivery Presumptions for Notices to Appear (8/15/2006)
    The court held that for purposes of rescinding an in absentia removal order, where a notice to appear is sent by regular mail, the BIA abused its discretion by requiring Petitioner to rebut the “strong presumption” of delivery for certified mail. (Nibagwire v. Gonzales, 06/13/06)
    AILA Doc. No. 06081566.
  • CA4 Vacates Removal Order Amid Discussion of “Date of Admission” Under INA §237(a)(2)(A)(i) (8/9/2006)
    The court held that the BIA erred in concluding that the “date of admission” under INA §237(a)(2)(A)(i) may include the date of adjustment to lawful permanent resident status, when a person has previously been inspected and admitted as a nonimmigrant visitor. (Aremu v. Gonzales, 06/19/06).
    AILA Doc. No. 06080961.
  • CA4 Overturns IJ’s Adverse Credibility Finding in Ethiopian Case (6/5/2006)
    The court found that Petitioner’s testimony in support of her asylum claim was not inherently implausible and that the IJ’s finding was unsustainable. The court held that the IJ did not provide a specific cogent reason for his adverse credibility finding and. (Tewabe v. Gonzales, 4/26/06)
    AILA Doc. No. 06060569.
  • CA4 Holds IJ Erred in Requiring Proof that Political Persecution Was the Sole Motive of the Government (5/3/2006)
    CA4 found that the IJ erred in requiring Petitioner to prove that political persecution was the Ethiopian government’s sole motive. The court held that the IJ, by failing to apply the “mixed motive” standard, erred as a matter of law. (Menghesha v. Gonzales, 3/13/06).
    AILA Doc. No. 06050363.
  • CA4 Finds General Challenge to Denial of Adjustment is Not Reviewable (2/17/2006)
    Although it acknowledged that it would have jurisdiction to review a legal or constitutional challenge to the denial of an adjustment application, the court found that Petitioner’s petition failed to present such a challenge. (Higuit v. Gonzales, 1/3/06)
    AILA Doc. No. 06021716.
  • CA4 Rejects Argument that Review of Denial of Motion to Remand for Non-LPR Cancellation is Barred (2/14/2006)
    CA4 points out that the BIA, in denying the motion to remand, did not actually consider or deny an application for cancellation of removal or the other form of discretionary relief enumerated in §242(a)(2)(B)(i). (Obioha v. Gonzales, 12/8/05)
    AILA Doc. No. 06021464.
  • CA4 Finds Credit Card Fraud Offense Not an Aggravated Felony Theft (9/13/2005)
    CA4 found the BIA’s conclusion that fraud offenses were subsumed in the definition of theft offenses ignored the distinction between the two and, thus, was “contrary to the intention of Congress, as evidenced by its separate and different treatment of fraud.” (Soliman v. Gonzales, 8/22/05)
    AILA Doc. No. 05091360.
  • CA4 Says Involuntary Manslaughter is Not a Crime of Violence (8/8/2005)
    Applying the Supreme Court’s rationale in Leocal v. Ashcroft, CA4 found that involuntary manslaughter is not a crime of violence because “it does not intrinsically involve a substantial risk that force will be applied ‘as a means to an end.’” (Bejarano-Urrutia v. Gonzales, 7/5/05)
    AILA Doc. No. 05080861.
  • CA4 Finds Insertion of an IUD and a Fine Not Persecution (6/7/2005)
    CA4 found insertion of an IUD did not constitute persecution where Petitioner never had the IUD removed and had a child unharmed in China despite nonpayment of a substantial fine. It also found that the fine imposed did not constitute a threat to life or liberty. (Li v. Gonzales, 5/2/05)
    AILA Doc. No. 05060762.
  • CA4 Holds that Untested Khat is Not a Controlled Substance (2/8/2005)
    CA4 reasoned that petitioner was not removable on the basis of controlled substance charges because khat is not listed as a controlled substance and the khat that formed the basis of the charges was not tested to determine if it contained a controlled substance. (Argaw v. Ashcroft, 1/31/05)
    AILA Doc. No. 05020838.
  • CA4 Refuses EAJA Fees in Criminal Habeas Actions; Distinguishes Immigration Habeas Actions (2/8/2005)
    The court held that § 2241 habeas petitioners in criminal custody are not entitled to recover EAJA fees because such actions are not purely “civil actions.” The court recognized that its rationale was not applicable to habeas petitions in the immigration context. (O’Brien v. Moore, 1/27/05)
    AILA Doc. No. 05020899.
 
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